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CHA OK with final contraception-coverage rule.

Last night the Catholic Health Association issued a memo to its members announcing that the final rules governing the Obama administration's contraception-coverage mandate are workable. In June of last year, CHA strongly criticized--as did the U.S. Conference of Catholic Bishops--the way the Department of Health and Human Services had attempted to accommodate the concerns of religious employers who objected to the mandate. The USCCB is still not (and may never be) happy with the rule. But CHA now believes HHS has addressed their concerns.

“It was important for our members to achieve resolution of this issue in time for them to negotiate their insurance renewals and with the assurance they would not have to contract, provide, pay or refer for contraceptive coverage," Sr. Carol Keehan, president of CHA, told me. "We are pleased that that has been achieved with this accommodation.” From yesterday's memo:

Since the original rule was issued over a year ago, there has been considerable concern raised by many parties including CHA. CHA had two principal concerns. The first was the four-part definition of what constituted a "religious employer." That concern has been eliminated. CHA's second concern was establishing a federal precedent that mandated our members would have to include in their health plans, services they had well-established moral objections to.

HHS has now established an accommodation that will allow our ministries to continue offering health insurance plans for their employees as they have always done.

Given that CHA membership includes only nonprofit hospitals, it's not concerned with for-profit employers who object to the mandate. "We recognize the broader issues will continue to be debated and litigated by others." Still, "Throughout this process, CHA has been in dialogue with the leadership of the bishops conference, the administration, and HHS."

So what do the final rules say?

As CHA explained to its members, the final rules dispatch with the earlier, much-maligned four-part definition of a religious employer as one that is not for profit, primarily serves co-religionists, primarily employs co-religionists, and exists to inculcate religious values. That's been simplified. HHS lifted the new definition from the tax code. Any religious organization that's exempt from filing a Form 990 (which all other nonprofits must file with the IRS every year)--including churches, integrated auxiliary association, and the religious activities of any religious order--is completely exempt from the mandate. That is, they don't have to offer contraception coverage to their employees, and their employees are not eligible to receive it for free outside their employers' health plans.

In order to accommodate the objections of other kinds of religious groups, HHS created a class of "eligible organizations," which will not be required to cover contraception in their employee health plans, but whose workers can obtain such coverage from third-party providers. Which employers qualify? Religious nonprofits that object to covering contraception on religious grounds. All they have to do in order to get the accommodation is to self-certify that they qualify. They fill out a form, send one copy to their insurer and file away another for safekeeping, as required by the Employee Retirement Income Security Act. They don't have to send it to HHS or the IRS. (But should the government come calling, they do have to produce it.)

Once the insurer receives the form, the employer's work is done. The insurance company must then notify covered employees--separately from literature related to the main policy--that it will be paying for contraceptive services. (It's barred from adding fees to the employer's premiums in order to recoup costs--nor can the insurer allow the costs to be reflected in the premiums.) Rather than offer a separate contraception policy, as the previous dratf of the rules proposed, insurers must segregate the premiums it receives from "eligible organizations" from the funds they use to pay for contraception.

Now, some will surely object that this is nothing more than an "accounting gimmick." But this is precisely how states that cover elective abortions for Medicaid enrollees are able to receive federal dollars for the program. The Hyde Amendment bars federal money from funding elective abortions. The only way such states can receive federal money in compliance with that law is to create separate accounts for both funding sources. (Incidentally, when the bishops were lobbying against Obamacare, that was part of the status quo they said they supported.)

So-called self-insured eligible organizations are handled a bit differently. Those employers don't contract with insurance companies to cover for their employees' health-care services. They fund them directly, and pay a third-party administrator to manage the claims (administrators are often insurance companies). Such organizations simply send their self-certification form to the third-party administrator, which must state that the employer is not the claims administrator and cite the administrator's obligations under ERISA regulations. Again, employers don't have to send the form to any government agency. They just have to keep a copy in their files.

At this point, the third-party administrator has to decide whether it wants to handle the contraception services. If so, it's responsible for notifying employees (again, separately from any communications related to the main policy) that they will receive this coverage, and then it must arrange for the coverage, whether through its own network (if it's an insurance company), or by contracting with another provider. Third-party administrators that agree to this will be reimbursed for their costs.

This means that none of the money collected by self-insured religious employers that object to the mandate will pay for contraceptive services. And that none of the premiums paid by other objecting religious organizations will be used to cover such services. This is why, as I've written a few times before, it seems to me that Catholic employers can comply with the mandate without running afoul of Catholic moral teaching. (Indeed, at least one bishop has expressed cautious optimism about the previous version of the accommodation.)

In addition, if an "eligible organization" wants to exclude one form of contraptive services from its plan but not others, insurers (or third-party administrators) must honor that request, and offer the excluded coverage separately.

Comments

Grant, thanks for this post. I had seen an article or blog post ("seen" as in, "noted its existence but hadn't read through") somewhere in the last few days whose thesis seemed to be that the final rules were pretty much identical to what had been proposed before, so I appreciate your highlighting what has changed. I'm sure CHA made an honest and thorough evaluation before making this recommendation to its members.

FWIW, here is the blog post I had in mind. It turns out that I had read it through, as there isn't much to read; but your post here contradicts its main contention: "the long and the short of it is that nothing has changed since this came out in a draft form in February."

The final decisions will have to be made locally by each hospital board of directors. Some are still directly controlled by bishops but my impression is that most have lay boards or are controlled by religious orders.

Some of the 2000 health facilities who are members of CHA have plan years starting January 1, so they will have to make decisions about insurance within the next few months.

Perhaps the next step in the battle will be for some diocesan bishops to try to convince boards they don't directly control to reject the HCA recommendation and refuse to comply with the HHS contraception regulations. It will be interesting to see what arguments they make and what success they have. It will also be interesting to see what bishops do where they do control hospital boards.

Who reimburses the admistrator of self-insured plans? (HHS claims insurers of insured plans will save money, which makes on wonder why they haven't been force-feeding contraception pills to the insured; but obviously administrators won't make money and neither will any insurance company that pays only for sterilization, abortifacients, and contracetives.) Is the taxpayer on the hook here?

Ultimately yes, in the sense that the taxpayer is also on the hook for subsidies the government provides to for-profit cogs in the war machine. TPAs that agree to provide contraception coverage will receive subsidies in the form of lower fees on the exchanges (plus more, if their costs end up being more).

William Dempsey, they are paid out of fees that they or other insurance companies pay to sell insurance though governent health exchanges.

(3) If a third party administrator provides or arranges payments for contraceptive services in accordance with either paragraph (b)(2)(i) or (ii) of this section, the costs of providing or arranging such payments may be reimbursed through an adjustment to the Federally-facilitated Exchange user fee for a participating issuer pursuant to 45 CFR 156.50(d).

I don't believe TPAs, as distinguished from insurance companies, participate in the exchanges. They evidently will be reimbursed for expenses plus a profit directly from the general fund. So what it comes to in substance is that, when a catholic school offers a medical/hospital plan to its employees, they will receive free abortifacients, contraceptives, and sterilization paid for by the government. And the question is whether catholic schools, hospitals, and so on should object by way of litigating or remedial legislation or both, or instead acquiesce. It is not, that is, whether they should refuse to comply after they have exhausted reasonable efforts to have the regulaton set aside by court of legislature. If the government were to offer such a program to employers who voluntarily joined, should a catholic school join? If not, why should it not seek to have this mandate lifted by legitimate means?

Could we make it a rule here that when a post uses an acronym it must first tell us what the acronym stands for? It can do this simply first spelling out the phrase in the first instance and later using the acronym. Or, it could used the acronym then put its meaning in parentheses after it, e.g., NAM (National Assoc. of Manufacturers). Or whatever -- that way we don't have to be mind-readers.

Ann - "TPA" = "Third Party Administrator". For organizations that self-insure, typically they hire a TPA to do the administrative tasks that are required for an employee insurance plan. The TPA would handle tasks like enrollment and claims.

Thank you, Mr. Hayes. It is good to have the correct set of regulations. It does not seem that the passage you quote, or any other I can find on a quick reading, supports the CHA statement that "the participating insurer and TPA will also receive an added allowance to compensate for administrative costs and margin associated with the contraeptive services provided under the accommodatio." But it's immaterial to my qustion. In any case in whatever form, the federal government is paying for the service.

allowance to compensate for administrative costs and margin associated with the

I reply to myself to apologize for not cutting the two dangling phrases at the end of my comment.

I add that I have heard nothing about the question I raise, namely, whether if a Catholic organization should not voluntarily accept the government's offer to provide free abortifacients, contraceptives, and sterilization to its employees, it should acquience in this mandate without seeking judicial relief first. This question is entirely unrelated to the question of compliance once reasonable means of protest have been exhausted.

The Catholic organization is not receiving contraception coverage (and the science is not settled on Ella's abortifacient properties). The employees are, unless they work for an exempt church organization, in which case they do not have access to the coverage. Those who work for "eligible" organizations can choose not to avail themselves of the coverage. Many of them are not Catholic. Under Title X, the federal government has been providing FDA-approved contraception for forty years. Catholic moral teaching does not hold that citizens are morally culpable for what their government does with their tax dollars.

With respect, this does not answer my question. I did not suggest anyone was morally responsible for what the government does with its money. I simply wanted to get clear the fact that the benefits are federally funded in order to lay the ground for my question, which is whether it would be morally permissible for a Catholic organization to accept a proffer by the government to afford this coverage to the organization's employees upon application by the organization, and, if not, why then should such an organization not seek to avoid the government's providing this coverage upon the organization's pulling the trigger by providing health care under government compulsion. To put it differently, why should CHA be praised, instead of criticised, for not seeking to avoid this effect of its action. That action is a necessary cause of the provision of devices, drugs, and surgeries that presumably these organizations hold to be immoral. They will not be provided unless the organiazation offers a health care plan, and the government requires that it do so. As I said, the question of compliance or defiance if court and legislative efforts fail is an entirely discrete question. (The dispute over whether Plan B and Ella are abortifacients is immaterial here, where the question is one of conscience, not law or science, unless the CHA takes a the view that the drugs here involved and sterilization are morally permissible.)

Accuracy matters. The bishops of Connecticut, for example, changed their minds about whether Plan B has abortifacient properties and stopped protesting a state law that required hospitals to dispense the drug to rape victims who requested emergency contraception. The German bishops agreed (in fact, they permit Ella to be given ro rape victims). Some Protestants oppose the mandate because they claim it requires them to fund abortifacient drugs.

I simply wanted to get clear the fact that the benefits are federally funded in order to lay the ground for my question, which is whether it would be morally permissible for a Catholic organization to accept a proffer by the government to afford this coverage to the organization's employees upon application by the organization, and, if not, why then should such an organization not seek to avoid the government's providing this coverage upon the organization's pulling the trigger by providing health care under government compulsion.

Contraception coverage is only "federally funded" by way of subsidies, and insurance companies acting as insurers (not third-party administrators for self-insured employers) will cover contraception actuarially it seems not to increase their costs.

The current form of the mandate seems to allow Catholic employers, according to the principles of their own tradition of moral theology, to licitly cooperate with this regulation. (I won't rehearse my argument again here.) I opposed the mandate's original form because it would have forced Catholic employers to contract for contraception coverage.

I simply wanted to get clear the fact that the benefits are federally funded in order to lay the ground for my question, which is whether it would be morally permissible for a Catholic organization to accept a proffer by the government to afford this coverage to the organization's employees upon application by the organization.

But the Catholc organzation is not being asked to apply for the coverage. The government is saying "if you choose not provide this coverage to your employees, we will cause it to be provided to them by others - you have no choice about that."

I think it is very inappropriate for the bishops to lobby this issue in the public square. It's one thing to exercise their authority in the pulpit, but in the legistive arena, we're a representative democracy.

They must know they don't speak for most Catholics on contraception, so they shouldn't be advocating as if they do. I think it is dishonest and an abuse of their position.

I see. The quetion II raised turns upon the distinction betweeen (1) voluntarily taking action that the actor knows will result in illicit actions by others and (2( tthe actor being compelled to take such action by force of law after having unsuccessfully taken available measure to be relieave of such compulsion. Since you believe that Catholic organiaations may volutarily take such action -- "licitly cooperate" -- of course you agree with CHA. Like you, I will not here elaborate on this issue of material cooperation, trusting that the precise framiong of the issue will suggest that there is a substantial contrary view.

(Of course accuracy matters, but not on particular distinctions for particular questions. Here, the certain results are increased use of contraceptives and sterilization, illicit under Catholic teaching. Whether Plan B or Ella or both terminate human life is significant to non-Catholic Christians who have resisted, but not to the fundamental religious liberty question raised under Catholic teaching.)

Oh, but you omitted the operative part of my question, Mr. Hayes The part you quote -- "whether it would be morally permissible for a Catholic organization to accept a proffer by the government to afford this coverage to an organization's employees upon application by the organization" -- is simply a hypothetical designed to lay the foundation for the question at hand -- "if not, why then should such an organization not seek to avoid the government's providing this coverage upon the organization's pulling the trigger by providing health care under government compulson." I may be missing something, but I do not see a response to either the hypothetical or the operative parts of my question.

The Catholic moral tradition is premised on the reality of original sin. That is, it does not pretend that there is a universe in which moral agents act with complete freedom from sinfulness. Everything an employer provides to his employees in exchange for their labor could be used for illicit purposes. In the United States, benefits are considered part of an employee's compensation package. Every dollar a diocese pays an employee can be used to procure all manner of goods to be used for purposes considered illicit by the Catholic Church. How many Catholics have used their salaries to pay divorce attorneys? Are their bishops responsible? No more than they are to be credited when their employees use their wages to serve the poor. An employee's moral choices are her responsibility. In other words, you can't cut out the moral agency of the employee and expect to have provided sufficient moral analysis of the problem--at least not if you want to claim to be analyzing the situation according to Catholic tradition.

Of course not. But this sort of reductio absurdum works only with comparable illustrations. Here, the analogy would be, not to your example of an employer paying wages that an employee uses in part to pay for a divorce, but to an employer providing as a fringe benefit payment for divorce, And who in the world would "cut out the moral agency of the employyee"? By definition, by speaking in terms of material coooperation with evil, we are speaking of cooperation with other persons' illicit actions. All depends on circumstances. What I am after is an analysis, not of the liceity of complying with this mandate if there is no way out other than civil disobedience with its attendant consequences, but of the obligation, if there is one, of exhausting avaiable means of relief from the mandate. The cooperation comes in the form of taking a step essential to the provision of the contraceptive services, that is, providing a health insurance plan. If one believes that taking such a step voluntarily, knowing with reasonable certainty that the result will be that employees will engage in more contraception, is morally unobjectionable, as I take it you do, then of course there is no problem. I question whether this position squares with traditional material cooperation analysis. What would be required is counterbalancing beneficial effects that outweigh the moral evil.

This is not a case of reductio ad absurdum. American workers receive benefits in exchange for their labor. What they choose to do with those benefits is up to them. No one will force anyone to use the free contraception coverage, just as no one forces anyone to buy condoms with their diocesan paychecks.

You're quite right that you can't run an analysis of cooperation with evil without accounting for circumstance. That's what I have been doing for months. The circumstance is the Affordable Care Act and its attendant regulations. You keep missing an essential part of Catholic moral reasoning. In order to determine whether material cooperation with evil is licit, we must answer the question: Is my cooperation the only way the evil end could be achieved, or is it likely that the evil end would result without my cooperation. In this case, if Catholic employers were to choose not to offer their employees medical coverage, their employees would end up going to the exchanges to secure coverage. That coverage would include contraception services (and possibly abortion). They would pay for that coverage with their wages. (Don't forget that employees of dioceses and their auxiliaries--parishes, schools, etc.--will not receive free contraception coverage.) Either way, their employees will be obtaining contraceptive coverage.

I don't know whether the USCCB has an obligation to exhaustively oppose the mandate. At some point, I imagine, the bishops would want to ask themselves: How much is this campaign costing us, in treasure and credibility?

why then should such an organization not seek to avoid the government's providing this coverage

How would they do that?

They are not compelled by the government to provide health care coverage to their employees. If they elect not to, the Supreme Court has already decided that they can be required to pay a tax.

If they do elect to provide health care coverage to their employees, on what basis would they argue that he government should not be allowed to provide free contraceptives to any employees who want them?

i suppose there will be some people who will go to court. Please see my comment of July 9 at 4:06 pm.

The means of recourse are, of course, through litigation and legislation. If there is a moral obligation to seek to be relieved from a legal obligation to take action that will result in increased contraception, sterilizatiom, and abortions (for those who believe Plan B is an abortifacient), the only reason not to litigate or seek legislative relief, I suggest, would be if settled law stands in the way of litigation and the political landscape forecloses legislation. Speaking only of litigation, surely no informed and disinterested lawyer would say say that settled law under the Restoration of Freedom of Religious Liberty act makes litigation a sure loser. There will be reasonable differences of view as to the odds and no siure guidance in precedent, but litigation would be far from frivolous. And free legal counsel is readily available. In thee ciorcumstances, I suggest that the reason Catholic organizatios may refrain from pusuing potentially available remedies, and their supporters thiink they should, may not be grounded so much in a careful analysis of the material cooperation doctrine but rather in the view that making contraception and sterilzation and "morning after" pills freely available is not so bad after all.

Please consider that some contraceptives are used for medical conditions in order to prevent the need for expensive surgeries or treatments that would likely fall under your defintions of "life-saving care" and "expensive bills." So, the mandate does "mind life-saving care or expensive bills that send people into bankruptcy." These medications are more than just "condom substitutes."